Thoughts on Driesen’s The Economic Dynamics of Law

David Driesen’s book, The Economic Dynamics of Law, offers a powerful new approach to law and policy analysis. Like many others, Professor Driesen critiques neoclassical law and economics and the application of conventional cost-benefit analysis (CBA) to various areas of law and policy. Unlike most others, however, Professor Driesen develops an alternative.

Professor Driesen emphasizes a host of broad framing points, the implications of which are not fully understood, generally and especially within conventional law and economics. I take the following points to be, for the most part, uncontroversial (even if their implications are not fully understood). Most people will agree that we live in an incredibly complex, dynamic world consisting of many interdependent, complex evolving systems; that law shapes these systems and critically how these systems change or evolve over time; that path dependencies make some changes irreversible and others incredibly costly to unwind; that law is necessarily normative as are the path setting consequences of law; that law operates as a framework that shapes but does not fully determine what people do.

The implications of these framing points demand serious attention, however, because they are too easily misunderstood or simply assumed away to make analysis tractable. For example, the implications of the fact that preferences are endogenous and that law and the systems structured by law shape preferences are not fully accounted for in law and economics. It is admittedly difficult to take such complications into account, and so the more tractable move is to assume preferences are exogenous and that law’s objective is efficient satisfaction of existing preferences. Professor Driesen explains the errors in such a move. Tractability is a poor excuse for failing to engage with reality and the normative stakes of law’s dynamics. The fact that law shapes preferences and beliefs means that we cannot avoid confronting questions about how law shapes who we are and who we can even contemplate being.

Professor Driesen thus places analytical emphasis on law’s role in setting paths or choosing directions for society rather than determining outcomes or optimizing resource allocations. He advances two broad normative commitments — avoiding systemic risk and providing opportunities for economic development. He defines each and develops means for analyzing them that goes beyond conventional CBA. As others have commented on the relationship of his approach and CBA, I’ll leave that aside. With regard to systemic risk, I had two questions for Professor Driesen: First, how would he deal with intergenerational issues? He touches on CBA’s use of discount rates in the climate change context and how “CBA’s results depend on the policy views of the economist conducting the analysis,” but I didn’t fully understand what alternative he offered. Second, what about systemic benefits? Simply put, I wondered whether there is a symmetrical point to be made about systemic benefits. I discuss related issues in my book, Infrastructure: The Social Value of Shared Resources (Co-Op symposium), and connect the commitment to the idea of a social option, but it also ties into North’s adaptive efficiency argument, which Professor Driesen discusses. Systemic benefits may be a broader way to think about his second normative commitment concerning opportunities for economic development, but it is hard to say because that commitment gets much less attention in the book. Perhaps opportunities for economic development should be extended to include human development and Driesen’s approach could incorporate some of the ideas and lessons from Sen’s Capabilities Approach. Certainly, many of the framing points noted above are also central to the CA project.

I was a little disappointed that the second normative commitment received less attention. Much of the law is focused on opportunities for (human and) economic development. Many of the applied chapters (e.g., contract, property, IP) seem to focus on it, but those chapters seemed mostly descriptive and backwards looking, with Professor Driesen saying something like, “Hey, wait a minute! What’s really happening in these areas is dynamic change over time, with bounded rationality, …, it’s not classic law and econ!” I would like to see more analysis of how Professor Driesen’s approach could better reconcile these areas of law with the second normative commitment he identified.

On IP, let me just say that I agree with Professor Driesen – IP scholars certainly think a lot about dynamic change. He is right that we need to pay much more attention to path setting and how IP laws, for better or worse, shape the paths available and the paths taken. This was a theme I explored in Intellectual Infrastructure, chapter 12 of my book. In fact, many IP scholars are now working on this subject.

Let me end with a brief cautionary note on Professor Driesen’s appeal to macroeconomics. I agree with him that legal scholars who employ economics tend to rely heavily on microeconomics and ignore macroeconomics. He is also correct, in my view, when he suggest that overreliance on microeconomics, or at least certain aspects of it, has often sustained unrealistic assumptions, ideological commitments (sometimes hidden beneath the veneer of objectivity), and bad results. I would only caution Professor Driesen that the same might be said of macroeconomics.